Lachhman Rai and anr. Vs. Jang Bahadur Rai and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/458119

Subject

Civil

Court

Allahabad

Decided On

Dec-12-1933

Reported in

AIR1934All287

Appellant

Lachhman Rai and anr.

Respondent

Jang Bahadur Rai and ors.

Excerpt: - - the award was already in existence before 21st january 1933, and it was a good and unanimous award. the fact, that their lordships of the privy council had no difficulty in holding that a decree made by a judge under mistaken circumstances could be set aside by himself, by the application of his inherent powers, is a sufficient authority for the proposition that order 20, rule 3 does not apply to circumstances like these.mukerji, j.1. this is an application to-revise an order of the learned munsif of basra in the district of ballia, dated 15th may 1933, by which he overruled the objections of the defendants-applicants and, accepting an award as a valid one, directed that a decree be framed in terms of the same. the facts which led to this petition in revision are briefly these : on 5th december 1932, the parties to the suit before the learned munsif agreed that the dispute between them should be referred to the arbitration of five gentlemen. the date originally fixed for making of the award was extended to 21st january 1933. on that day nobody appeared before the court, and there was no application on behalf of the arbitrators to extend the time for making the award. the learned munsif in the.....

Judgment:

Mukerji, J.

1. This is an application to-revise an order of the learned Munsif of Basra in the District of Ballia, dated 15th May 1933, by which he overruled the objections of the defendants-applicants and, accepting an award as a valid one, directed that a decree be framed in terms of the same. The facts which led to this petition in revision are briefly these : On 5th December 1932, the parties to the suit before the learned Munsif agreed that the dispute between them should be referred to the arbitration of five gentlemen. The date originally fixed for making of the award was extended to 21st January 1933. On that day nobody appeared before the Court, and there was no application on behalf of the arbitrators to extend the time for making the award. The learned Munsif in the circumstances passed an order superseding the arbitration and fixed 10th March 1933 for the trial of the suit before himself. On 26th January 1933 the plaintiffs put in two applications one of which contained the prayer that the order superseding the arbitration should be set aside and the other was to the effect that Mahabir Singh, one of the arbitrators, had been given the award on 21st January 1933 for being filed in Court but for some reasons he was withholding that award. The Court gave the defendants an opportunity to object to these applications and fixed 3rd March 1933 for hearing of the two applications and any objections that might be filed to them. On 3rd March 1933 the plaintiff made an application to the Court stating that Mahabir Singh, arbitrator, was present in Court and he had the award in his possession and, if the Court sent for him, the award would be filed. Mahabir Singh was apparently called and he did file a document, which purported to be the award of the arbitrators. The Court thereafter asked the parties to produce their evidence and on hearing the evidence came to the conclusion, that, as a matter of fact, the award was unanimous; that it had been made on 20th January 1933, that is to say, before the time fixed by the Court for the making of the award and that the defendants' objections to the validity of the award were not correct. In the result, as we have stated, the award was accepted and a decree was ordered to be framed in terms of it. The learned Counsel for the defendants has contended before us that it was not open to the Court to sot aside its own order of 21st January 1933 by which it superseded the arbitration. We are of opinion that the order of 21st January 1933 having been passed under a misapprehension of true facts, it was open to the Court when true facts were brought to light to set aside the order of 21st January 1933 under its inherent jurisdiction as denned in Section 151, Civil P.C. The award was already in existence before 21st January 1933, and it was a good and unanimous award. There was therefore no reason why that award should not be accepted.

2. In Debi Bakhsh Singh v. Habib Shah (1913) 35 All. 331 their Lordships of the Privy Council expressed the opinion that in the circumstances of that case, which will be stated presently the Court possessed inherent power to rectify the mistake which had been inadvertently committed even apart from the provisions of Section 151, Civil P.C. In the case before their Lordships the plaintiff was dead and that fact being not known by the Judge the suit was dismissed for default of prosecution. Within the time limited for the legal representatives of a deceased plaintiff to apply for being brought on the record such an application was made by the plaintiff's son. In these circumstances, their Lordships expressed themselves as stated above. In our opinion, this decision of their Lordships of the Privy Council would be a sufficient authority for the Munsif to act in the way he has done. The next argument was that an order superseding an arbitration is an appealable order, and therefore the grounds on which it was based must be treated as a judgment and, as under Order 20, Rule 3 a judgment once pronounced could not be altered by the Court, it was not open to the Munsif to set aside his own order. This provision of law, namely, Order 20, Rule 3 applies to the final judgment. The fact, that their Lordships of the Privy Council had no difficulty in holding that a decree made by a Judge under mistaken circumstances could be set aside by himself, by the application of his inherent powers, is a sufficient authority for the proposition that Order 20, Rule 3 does not apply to circumstances like these. The petition fails and is hereby dismissed with costs.